[Cite as State v. Alt,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96289

STATE OF OHIO PLAINTIFF-APPELLEE vs.

SUSAN ALT DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527674

BEFORE: Keough, J., Boyle, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: October 20, 2011 ATTORNEY FOR APPELLANT

Richard M. Kerger Kerger & Hartman, LLC 33 S. Michigan Street Suite 100 Toledo, OH 43604

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Edward H. Kraus Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Susan Alt, appeals the trial court’s judgment denying

her motion to withdraw her plea. Finding no merit to the appeal, we affirm.

I

{¶ 2} In August 2009, Alt was charged in a 96-count indictment stemming from a

sophisticated mortgage fraud scheme that enabled Alt to steal over three million dollars.

Alt pleaded not guilty. Exhaustive discovery and numerous pretrials ensued, and the trial

date was reset several times. {¶ 3} On July 6, 2010, two weeks prior to trial, Alt pleaded guilty to 31 counts of

the indictment; the remaining counts were nolled. As part of the agreement, Alt agreed

to forfeit two million dollars. The record reflects that she never made any of the

agreed-upon payments.

{¶ 4} In November 2010, at Alt’s request, sentencing was reset to December 16,

2010. But on December 2, 2010, two weeks before sentencing, Alt filed a motion to

withdraw her guilty plea, asserting that her plea should be vacated because she “did not

fully understand all of the ramifications of her plea” and “maintains her innocence and

has a defense to the charges.” She subsequently filed a supplement to her motion in

which she argued that presentence motions to withdraw, although discretionary with the

trial judge, “should almost always be granted.”

{¶ 5} Alt did not appear for sentencing on December 16, 2010 and the trial court

issued a capias. On December 20, 2010, after a hearing at which Alt appeared, the trial

court denied Alt’s motion to withdraw her guilty plea. The court then sentenced her to

nine years incarceration on Count 1 of the indictment (engaging in a pattern of corrupt

activity), and two years on the remaining counts to which she had pleaded guilty, all

counts to run concurrent. The court also advised Alt that she would be subject to five

years mandatory postrelease control.

{¶ 6} On appeal, Alt contends that the trial court erred in denying her motion to

withdraw her plea.

II {¶ 7} “Crim.R. 32.1 provides that a defendant may move to withdraw his guilty

plea prior to sentencing. A defendant who so moves, however, does not have an absolute

right to have his guilty plea withdrawn. The trial court must conduct a hearing to

determine whether there is a reasonable and legitimate basis for

{¶ 8} withdrawal of the plea. State v. Xie (1992),

,

. The decision to grant or deny the motion is within the trial court’s

discretion and will not be disturbed absent a finding of an abuse of discretion. Id.”

State v. Hurst, Cuyahoga App. No. 89297,

. A mere change of

heart is insufficient grounds for the withdrawal of a guilty plea prior to sentencing. State

v. Benjamin, Cuyahoga App. No. 85071,

.

{¶ 9} In State v. Peterseim (1980),

,

, this

court set forth the standard for determining whether the trial court has abused its

discretion in denying a presentence motion to withdraw a plea:

{¶ 10} “A trial court does not abuse its discretion in overruling a motion to

withdraw: (1) where the accused is represented by highly competent counsel, (2) where

the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the

plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and

impartial hearing on the motion, and (4) where the record reveals that the court gave full

and fair consideration to the plea withdrawal request.”

at paragraph three of the

syllabus. {¶ 11} In State v. Montgomery, Cuyahoga App. No. 87246,

, this

court added another criteria to the Peterseim standard. “In a case in which the record

reflects the defendant made his decision to enter a guilty plea when his case had been

pending for a considerable amount of time and the parties were at a point at which they

were fully prepared to go forward to trial, the ‘court certainly acts within its discretion to

include this circumstance in its subsequent consideration of the genuineness of the

defendant’s motion to withdraw his guilty plea.’” State v. Walker, Cuyahoga App. No.

95701,

, quoting Montgomery at ¶16.

{¶ 12} A review of the record in this case demonstrates the trial court fully

complied with the Peterseim criteria. Alt was represented by competent counsel and

informed the trial judge during her plea hearing that she was satisfied with her lawyer.

Further, our review of the transcript demonstrates that Alt was afforded a complete

Crim.R. 11 hearing before she entered her guilty plea. The trial judge informed Alt of

the constitutional rights she was waiving and made sure she understood them. Further,

the judge informed Alt of the charges and potential penalties upon pleading guilty, which

she indicated she understood. The judge also informed Alt that she would be subject to

five years mandatory postrelease control. Finally, the judge informed Alt that upon

acceptance of her guilty plea, the court could proceed immediately to sentencing, which

Alt again indicated that she understood. The record overwhelmingly demonstrates that

Alt understood the ramifications of her plea and that it was made knowingly, voluntarily,

and intelligently. {¶ 13} We also find that the trial court afforded Alt a full hearing on her motion to

withdraw. The record reflects that the court held a lengthy hearing at which defense

counsel argued why Alt should be allowed to withdraw her plea. The trial court

considered the State’s objections to the motion and, after full and fair consideration,

denied Alt’s motion. The trial court stated that it was denying the motion because Alt

had indeed understood the ramifications of her plea and her motion was nothing more

than a delay tactic.

{¶ 14} We agree with the trial court that Alt’s motion was simply a stall tactic.

When Alt pled guilty in July, sentencing was set for November in order to give her

sufficient time to procure the two million dollars she had agreed to forfeit. The

sentencing date was subsequently continued at Alt’s request to give her even more time to

obtain the forfeiture monies. Alt never obtained the monies, but then two weeks prior to

sentencing, and five months after her plea, she filed her motion to withdraw the plea.

The timing clearly demonstrates that the motion was made to stall the sentencing; Alt did

not have the money she had agreed to forfeit and knew she was going to prison.

{¶ 15} Furthermore, when Alt pled guilty in July, her case had been pending for

nearly a year and the parties were prepared to go to trial in two weeks. In view of the

fact that Alt pled guilty when trial was imminent, the trial court reasonably concluded that

her new claim of innocence, some five months after her plea and two weeks before

sentencing, lacked credibility.

. Absent a reasonable and legitimate basis to withdraw the plea, the trial court did not abuse its discretion in denying

Alt’s motion.

Affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR